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Crying Cited as Evidence of Request for FMLA Leave

Susan and Paul Murphy, husband and wife for 22 years, were employed as truck drivers by Watkins Motor Lines, which was subsequently purchased by FedEx. Due to a serious illness, Paul went on approved FMLA leave. His wife went on FMLA leave a few weeks later to care for Paul. Paul died unexpectedly a week later. Susan informed FedEx of Paul's death that same day. She was crying when she called. She remained on leave. A few days later Susan asked for an additional 30 days of leave "to take care of things." FedEx approved the leave. FedEx management testified that Susan was often crying and seemed "very sad" during these two discussions. Susan understood that she was approved for an additional 30 days of FMLA leave. FedEx subsequently informed Susan that she had been separated from the company prior to the expiration of the 30-day period.

Susan sued alleging that FedEx violated her FMLA rights by terminating her while she was on approved FMLA leave. FedEx defended by arguing that Susan was on bereavement leave, not FMLA leave, at the time of her termination. For purposes of summary judgment, the court disagreed with FedEx. According to the Court:

The Court believes that Plaintiff's employer's knowledge of Plaintiff's husband's death, the fact that she was crying, and that she asked for additional time to "take care of things" could be sufficient to put her employer on notice that she was asking for FMLA leave. If the employer had questions regarding whether Plaintiff was attempting to continue her FMLA based upon her own illness, it should have followed up with Plaintiff.

Comment: The decision is not as far fetched as it might initially seem. It is very clear that an employee is not entitled to FMLA leave "to care for" a covered family member once that family member passes away. The employee would, however, be still entitled to FMLA leave due to their own serious health condition, or to care for another covered family member with a serious health condition (e.g., emotional distress resulting from the death of the original covered family member, assuming the condition meets the definition of a serious health condition).

In Murphy, Susan requested leave for herself. The request was sufficient to shift the burden of inquiry to the employer because FedEx knew (1) she was asking for an extension of her approved FMLA leave; (2) the extension was for a significant period of time; and (3) Susan was demonstrably upset by the death of her spouse of 22 years.

Where an eligible employee requests leave due to a death in the family employer's should proceed with caution. Courts and jury's are likely to be very sympathetic to the employee. Employer's might want to think twice before jumping to the conclusion that the employee is only requesting bereavement leave outside of the protections of the FMLA. Employer's would be well advised to make additional inquiries to determine whether the leave is FMLA-qualifying.